Cahalane v Judge Murphy

• Jurisdiction: Ireland
• Judge: Finlay C.J.
• Judgment Date: 09 March 1994
• Neutral Citation: 1994 WJSC-SC 162
• Court: Supreme Court
• Docket Number: [S.C. No. 295 of 1993]
• Date: 09 March 1994

1994 WJSC-SC 162

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

295/93

CAHALANE v. MURPHY

JUDICIAL REVIEW

JEREMIAH ANTHONY CAHALANE

Applicant/Respondent

and

HIS HONOUR JUDGE ANTHONY J. MURPHY

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

Citations:

FINANCE ACT 1983 S94(2)(e)

FINANCE ACT 1983 S94(2)(d)

O'CONNELL, STATE V FAWSITT 1986 IR 362

DPP V BYRNE & CARROLL 1994 2 ILRM 91

Synopsis:

CONSTITUTION

Personal rights

Accused - Trial - Commencement - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Sixteen months from date of charge to date of return for trial on indictment in 1993 - Commission of offences alleged to have been committed in 1986 and 1987 - (295/93 - Supreme Court - 9/3/94) - [1994] 2 I.R. 279 - [1994] 2 ILRM 383

|Cahalane v. Murphy|

CONSTITUTION

Trial of offences

Accused - Offence - Trial - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Sixteen months from date of charge to date of return for trial on indictment in 1993 - Commission of alleged offences in 1986 and 1987 - (295/93 - Supreme Court - 9/3/94)

|Cahalane v. Murphy|

CRIMINAL LAW

Trial

Commencement - Delay - Accused - Prejudice - Witness - Death - Unconscionable delay - Delay of sixteen months between charge and return for trial in 1993 - Commission of alleged offences in 1986 and 1987 - Constitution of Ireland, 1937, Articles 38, 40 - (295/93 - Supreme Court - 9/3/94) [1994] 2 I.R. 279 [1994] 2 ILRM 383

|Cahalane v. Murphy|

DELAY

Trial

Commencement - Prosecution - Charges - Preparation - Time lapse - Sixteen months from date of charge to date of return for trial on indictment in 1993 - Commission of alleged offences in 1986 and 1987 - (295/93 - Supreme Court - 9/3/94) - [1994] 2 I.R. 279

|Cahalane v. Murphy|

WORDS AND PHRASES

"Due course of law"

Accused - Offence - Trial - Commencement - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Sixteen months from date of charge to date of return for trial on indictment in 1993 - Commission of offences alleged to have been committed in 1986 and 1987 - (295/93 - Supreme Court - 9/3/94) [1994] 2 I.R. 279 [1994] 2 ILRM 383

|Cahalane v. Murphy|

1 JUDGMENT delivered the 9th day of March 1994by Finlay C.J. [NEM DISS]

2 This is an appeal brought by the Director of Public Prosecutions (the DPP) against an order of prohibition made in the High Court by Carney J. on the 13th August 1993 prohibiting the trial before the first named Respondent at the prosecution of the DPP of the Applicant on eight counts of an indictment preferred against the Applicant in the Cork Circuit Criminal Courtpursuant to an Order made by the District Court on the 30th day of January 1993 returning him for trial.

3 In his Order of the 13th August 1993 Carney J. refused the application of the Applicant made before him to prohibit his trial on one further charge in respect of which he had been returned for trial namely the making of an incorrect return of income tax for the chargeable year 1988 to 1989 to the Inspector of Taxes such return being made on the 17th September 1990 and the offence alleged being an offence contrary to Section 94(2)(e) of the Finance Act, 1983. Against that refusal the Applicant before the High Court who is the Respondent before this Court did not appeal.

4 All the offences charged in respect of which the prohibition orders were made were offences impeding or preventing the collection by the Revenue Commissioners of excise duties and/or taxes.

5 The first two charges in respect of which the Order was made are an allegation that the accused togetherwith others conspired between the 1st January 1986 and the 11th of November 1987 to cheat and defraud the Revenue Commissioners of excise duties and value added tax by removing duty-free spirit, namely Vetichol, by filtering the same to attempt to extract the poisonous denaturant and by subsequent sale of the same for human consumption as alcoholic drink.

6 The third and fourth charges are in respect of knowingly or wilfully issuing or producing an incorrect invoice in connection with excise duties and value added tax on two occasions namely the 28th December 1986 and the 25th January 1987 and these offences are contrary to Section 94(2)(d) of the Finance Act, 1983. Quite clearly these third and fourth charges are associated with the first and second charges of conspiracy to cheat and defraud and the entire of the four first charges entered on the indictment are quite manifestly the most serious charges against the accused. Though probably not unrelated to the matters alleged in the first fourcharges the remaining four charges are offences contrary to the Finance Act of 1983 of failure to make value added tax returns and to keep documents prescribed by statutes for the purposes of value added tax, the dates of the offences being in respect of the year 1987.

7 The Applicant is a Veterinary Surgeon and was a director of a company named Caldon Ltd. which in 1986/87 was manufacturing an equine rub which was alcohol based and which was accordingly licensed for the purpose of obtaining duty-free alcohol for inclusion in its preparation.

8 As the charges indicate the case being made against the Applicant is that he with others was part of a conspiracy whereby...